Pull Over for the Emergency Manager

A challenge to a Michigan law that runs roughshod over democracy may now leap-frog the courts. Michigan's emergency-manager law, enacted this spring, gives state appointees unprecedented power over local governments and school districts, including the power to strip elected officials of their authority and to amend and discard union contracts. Poor communities, then, are subject to an unelected person's near-total authority on how they should manage their affairs, creating an exception to democratic systems of checks-and-balances and nullifying the effect of citizen voting. It is unsurprising that communities assigned emergency managers are largely African-American. The Sugar Law Center for Economic and Social Justice in Detroit challenged the new law in circuit court in June, but Governor Rick Snyder asked this month for the case to be fast-tracked to the state's Supreme Court -- which leans strongly conservative -- bypassing the circuit- and appeals-court process.

Snyder's push comes just as the far reach of the law is beginning to reveal itself. Detroit Public Schools emergency manager Roy Roberts used the authority granted him under Public Act 4 to issue $81 million in pay cuts that go beyond the $87 million in concessions teachers' unions had negotiated with Roberts' predecessor. In the city of Pontiac -- the impoverished seat of Oakland County, one of the nation's wealthiest counties -- the emergency manager voided a contract with the police dispatcher's union as part of the dissolution of city police services. Public Act 4 also disproportionately invalidates the votes of people of color by permitting state appointees to overrule the decisions of elected officials in cities with primarily African American populations. This month, the National Association for the Advancement of Colored People (NAACP) condemned the law on the grounds that it erodes the voting rights of racial minorities. Currently, Detroit Public Schools and three Michigan cities have emergency managers. Last week, Flint's mayor requested a financial review from the state, which is the first move toward an emergency-manager assignment.

The Sugar Law Center is representing a group of 28 citizen plaintiffs in a lawsuit filed in Ingham County Circuit Court that challenges the law's constitutionality. "We're conditioning the ability to elect local government on financial matters," says legal director John Philo. This case, he says, is about "emergency managers" rather than "emergency financial managers" because their power goes beyond finances and into policy. Snyder argues that the law is an essential tool needed to address the austere fiscal realities local governments face after a decade of economic challenges. Without the rush to the Michigan Supreme Court, the lawsuit could take years. The Court has given the Sugar Law Center until September 13 to respond to Snyder's request. The law center is meanwhile moving forward with the normal legal procedure, including a status conference held in court this week.

Bypassing the lower courts, though, will prevent advocates from obtaining many of the materials and records that a full judicial process would produce, which may very well be the point. Philo says that the discovery process in lower courts is crucial in this case. "We need to learn certain facts about the emergency managers, about the decisions they're making, the role for government in those decisions, and the costs to cities."

The lawsuit is arguing that the capabilities of emergency managers under the new law violate city charters. Constitutionally, cities have a right to vote on their charters, but an emergency manager can obscure any changes he makes to the way cities are run. His decisions, notes, and directives do not need to be made public. The state also can't legally put new costs on cities without creating new revenue, and that financial information about what costs cities bear for their emergency manager needs to be developed.

When Snyder ran for governor last November, the fact that he'd never held elected office was considered a political advantage. Snyder campaigned as a moderate and a successful businessman who promised to bring reasonable private-sector principles to the state's top job. Indeed, as if the legal process were a simple inefficiency, Snyder's move to accelerate the lawsuit is the strategy of a businessman. This seems in line with his support of the emergency-manager law in the first place, as it establishes a powerful decision-maker who can overrule elected officials and traditional democratic processes.

"There's a fundamental misunderstanding here about the difference of public office and a business," Philo said. "The danger of the law is that even if Governor Snyder has good faith and intentions, and I have no reason to believe he doesn't, whatever political party that comes in can radically redefine the politics of that city. You're going to put in people that are yours. That's an incredible power."

Snyder's request to the Supreme Court was filed under a special constitutional authority granted to the governor and legislature to ask the state's highest court for clarity on a law. It's used when it is necessary for public well-being or if "time is of the essence." Snyder used this unusual power once before: He requested an early ruling on the constitutionality of applying state income tax to a portion of pension income. The Court granted him the request without expanding on why, though it apparently responded to Snyder's now familiar concern that the case would otherwise be consumed in years of litigation. Oral arguments are scheduled next week.

In the emergency-manager case, Snyder spokesperson Geralyn Lasher told an AP reporter that a swift decision from the Supreme Court is necessary to prevent communities from enduring "financial distress and uncertainty for years while this case is being reviewed by courts." In fact, the lawsuit does not interfere in any way with the current work of emergency managers; they are continuing their day-to-day tasks in vulnerable communities. "This is just a traditional case where the law remains in place until a court decides it's not," Philo says. The lawsuit is also moving swiftly without the push to the Supreme Court. This case doesn't involve testimony before trial or taking depositions of numerous witnesses, which typically adds a year or more to a lawsuit.

In addition to the court challenge, the Stand Up for Democracy committee is organizing a petition drive to repeal the emergency-manager law. If that campaign is successful, petitions will be delivered to the State Board of Canvassers for verification and the law will be staid from implementation. Two weeks ago, organizers reported that they had nearly half of their 250,000-signature goal. They need 161,304 by March to put the issue before voters on the November ballot.

In the meantime, the Sugar Law Center is struggling not only against Snyder but with what amounts to a diversion tactic: Snyder keeps using the economic crisis as a justification for all sorts of extraordinary measures. "We have a national economic crisis caused not by local matters but by the mortgage crash, and it hit industrial states particularly hard," Philo says. "Our response at the state level is to localize it and pretend the communities with the highest unemployment, and therefore the lowest tax base, are mismanaged.

"I'm not saying there is not ever mismanagement issues," he added, "but if we realize the crisis is a statewide issue, where's the statewide solution? I don't see it."